Friday, December 4, 2009

Yes, 11th Circuit, We Know You're There.


I love how all of the sudden the 11th Circuit will do something to try to make it seem "relevant."

You know, they're way up in Atlanta, they don't release that many opinions (most are unpublished) and not on any set schedule, and let's face it, a few of them are kinda stiff.

But this week they tried to inject themselves into the South Florida legal conversation, the way they always do, by releasing an "Order" about a topic some of us civil lawyers deal with regularly -- in this case Rule 26 expert reports.

Ok, we got the message.

Yeah yeah yeah, you're the 11th Circuit, we know that, all powerful and all, got it! Isn't there something going on at the Coke Museum?

In Mann v. Taser International, Judge Fay takes a look at supplemental Rule 26 expert reports in the context of a wrongful death claim.

Here's the takeaway -- get it right the first time:
The district court set a March 12, 2007, deadline for the disclosure of expert witnesses and the completion of Rule 26 reports. A Rule 26 report must contain “a complete statement of all opinions the witness will express and the basis and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B). Federal Rule 26 correlates with local rule 26.2, which mandates that expert opinions must be disclosed sufficiently early in the discovery period to allow the opposing party to react before the close of discovery, under penalty of exclusion. N.D. Ga. R. 26.2C.

In observing the deadline, Plaintiffs filed a Rule 26 report for Dr. Gowitt on February 23, 2007, setting forth the cause of death as “excited delirium.” He explained the relationship between increased catecholamines and an excited delirium state. On June 11, 2008, Plaintiffs filed Dr. Gowitt’s second affidavit, asserting two new theories of causation: electrocution and acidosis. The district court excluded their theories relating to acidosis and electrocution, holding that the new theories were untimely and that Plaintiffs did not show the required justification for their failure to disclose this in a timely fashion.

On appeal, Plaintiffs assert that the opinions were disclosed timely. We disagree. Although there were six revised scheduling orders, the opinions and Rule 26 reports of Plaintiffs primary expert were due on March 12, 2007. The six revised scheduling orders dealt with rebuttal experts and specifically excluded previously disclosed experts, including Dr. Gowitt.

In the alternative, Plaintiffs contend that the opinions contained in the second affidavit clarified previous opinions that were submitted timely. Again, we disagree. Dr. Gowitt raises his opinions regarding acidosis and electrocution for the first time in earnest in his affidavit of June 11, 2008. Although Plaintiffs correctly point out that Dr. Gowitt’s initial affidavit contained the word acidosis, a plain reading of his affidavit does not put the defense on notice that Plaintiffs would present acidosis as a theory of causation. Dr. Gowitt’s sole reference to acidosis was a dismissive sentence, claiming that Melinda’s acidosis levels were lower than expected.

Finally, Plaintiffs submit that the electrocution theory was not available until May 2008. In support, Plaintiffs cite a study published in May 2008 which summarizes an emergency room event in which a patient’s irregular heartbeat became regulated after an officer deployed a Taser on the patient. Even given a broad reading, that article does not address electrocution as a potential cause of death. Consequently, Plaintiffs have failed to show that their failure to disclose Dr. Gowitt’s opinion in a timely fashion was justified.
Oh well -- that's why these guys get the big bucks (experts, I mean)!

5 comments:

  1. Where's the prejudice to the defendants by the new theories?

    ReplyDelete
  2. Early day. Shumie time. Hanukkah-XMAS shopping.

    ReplyDelete
  3. 3:18-- Chrismukkah

    ReplyDelete
  4. mmoezjpl, Xrumer Uleashed , lPtxztW.

    ReplyDelete